Tuesday, 29 March 2011

I know this is completely off topic for this Blog but I just had to rant about it.

On BBC radio4 "The World this Weekend" on Sunday Mr Kit Malthouse a Deputy Mayor of London was interviewed about the damage and disruption caused in London by so called "demonstrators" who attached themselves to the peaceful and lawful protest march against government expenditure cuts.

It really irritated me because whatever the marchers were they were definitely NOT "Fascists". I did see a couple on TV who were carrying the old Soviet Flag so why not call them "Communists" or "Anarchists" why call them "Fascists".

I suppose it all ties in with a general tendency today to use "Fascist" as an all encompassing political insult for anyone you disagree with however I also think it ties in with a general tendency to forget about or to excuse communism and the terrible things it did.

A couple of years ago I lectured on Human Rights at a local university and gave a general historical background to the European Convention and I talked about the Holocaust, naturally, but I also talked about Communism and Stalin. What I discovered is that the students, who were all late teens early 20's had all been taught about Fascism, Hitler and the Holocaust but they knew absolutely nothing about Communism, Stalin or the Gulags. I fear that we have a generation who are incapable of understanding that the "left" ever did anything wrong in History so when anything is done that is bad it has to be blamed on the right and the offenders branded as "fascists" even when that is clearly the last thing they are.

The case involved a volunteer at a Citizens Advice Bureau and whether she was protected under the (now repealed) Disability Discrimination Act however it was common ground that the decision would involve all volunteers for any voluntary organisation and would apply to all types of Discrimination covered by the 2010 Act. What the Court of Appeal decided was that the Directive, and hence the Act, only applied to employees and not volunteers.

This decision is of particular significance to all religious organisations because of the large number of volunteers that are always involved with churches, synagogues, mosques, gurdwaras temples etc. If the Equality Act had applied to volunteers then these organisations would have been faced with a potential bureaucratic nightmare as they would have to ensure that every volunteer post was filled in accordance with equality guidelines with the possibility of facing Tribunal claims from disaffected parishioners who felt that they had been overlooked for appointment to a voluntary post. The fact that the law does not apply to volunteers lifts this potential threat from all voluntary organisations and allows them to get on with their primary role

Prior to Percy the general assumption in law was that religious ministers, of all denominations, were office holders rather than employees and so were not protected under unfair dismissal and/or discrimination law. In Percy however the House of Lords decided that, on the specific facts, the Minister in the case was an employee and the same decision was made in Moore as regards a Methodist minister.

How far this principle will extend is difficult to determine. It is possible that Denominations which have a very sacramental view of the status and role of the Clergy, such as the Catholic and Orthodox Churches, will continue to be able to claim that their clergy are "office holders" rather than employees. However for Free Church Ministers, Rabbi's and Immans the position may be different and they may be held to be employees of their respective congregations should they decide to sue for unfair dismissal or discrimination.

I had blogged previously about the 2009 decision on 5 November 2009, 7 November 2009 and 13 April 2010 but for those who have missed this saga the case involved a Mrs Lautsi a Finnish Lady who had moved to Italy and then complained about the presence of Crucifixes in Italian State Schools which is a bit like moving to Finland and then complaining about the snow. In the 2009 decision the ECtHR decided that the presence of the Crucifix interfered with Mrs Lautsi's childrens freedom of religion as guaranteed by Article 9 of the European Convention on Human Rights and Protocol 2 of the Conventionrelating to the rights of parents to have their children educated in accordance with the parents philosophical and religious beliefs

As I predicted in my earlier Blogs the ECtHR based its decision on the concept of the "margin of appreciation" and decided that it was for individual countries to make these decisions so that just as France is free to ban all religious symbols from state schools so Italy is free to put religious symbols in state schools. In the UK context this is a significant basis for the decision. When UK Courts apply theHuman Rights Act 1998 which incorporates the European Convention into UK law they apply the "margin of appreciation" so as to give that margin to Government and public bodies. The fact that the display of the Crucifix, or indeed any other form of religious symbol, is governed by the "margin of appreciation" will go a long way to free local and central government, schools etc from the danger of legal cases being brought to ban Nativity Displays, prayers at remembrance parades etc.

Unusually for the ECtHR there were a number of separate concurring judgments and I feel that some of them deserve quoting in detail because they do pick up and question the often unquestioned assumption that Secularism is the same as religious neutrality

"JUDGE BONELLO1.1 A court of human rights cannot allow itself to suffer from historical Alzheimer's. It has no right to disregard the cultural continuum of a nation's flow through time, nor to ignore what, over the centuries, has served to mould and define the profile of a people. No supranational court has any business substituting its own ethical mock-ups for those qualities that history has imprinted on the national identity. On a human rights court falls the function of protecting fundamental rights, but never ignoring that “customs are not passing whims. They evolve over time, harden over history into cultural cement. They become defining, all-important badges of identity for nations, tribes, religions, individuals”.1.2 A European court should not be called upon to bankrupt centuries of European tradition. No court, certainly not this Court, should rob the Italians of part of their cultural personality

2.5 Freedom of religion is not secularism. Freedom of religion is not the separation of Church and State. Freedom of religion is not religious equidistance – all seductive notions, but of which no one has so far appointed this Court to be the custodian. In Europe, secularism is optional, freedom of religion is not.2.6 Freedom of religion, and freedom from religion, in substance, consist in the rights to profess freely any religion of the individual's choice, the right to freely change one's religion, the right not to embrace any religion at all, and the right to manifest one's religion by means of belief, worship, teaching and observance. Here the Convention catalogue grinds to a halt, well short of the promotion of any State secularism."

"JUDGE POWERNeutrality requires a pluralist approach on the part of the State, not a secularist one. It encourages respect for all world views rather than a preference for one. To my mind, the Chamber Judgment was striking in its failure to recognise that secularism (which was the applicant's preferred belief or world view) was, in itself, one ideology among others. A preference for secularism over alternative world views—whether religious, philosophical or otherwise—is not a neutral option. The Convention requires that respect be given to the first applicant's convictions insofar as the education and teaching of her children was concerned. It does not require a preferential option for and endorsement of those convictions over and above all others.........To prohibit in public schools, regardless of the wishes of the body politic, the display of a symbol representative of that (or indeed any other religious) tradition and to require of the State that it pursues not a pluralist but a secularist agenda, risks venturing towards the territory of intolerance – a concept that is contrary to the values of the Convention."

Saturday, 12 March 2011

This is a reproduction of an Article I had published in the March 3rd issue of The Catholic Herald

“Marriage as understood in Christendom is the voluntary union for life of one man and one woman, to the exclusion of all others” are the first words in the law report of the 1866 case of Hyde v Hydewhen a Court in England was asked to consider the legal validity of a potentially polygamous Mormon marriage, much the same conclusion was reached by the US Supreme Court in the 1878 case ofReynolds v USAwhich also involved polygamous Mormon marriage.

Today mainstream Mormons reject polygamy but the question raised in these 19th Century cases “what is marriage ?” is once again a live issue with the announcement by the government that it is considering legalising same sex marriage and the unequivocal rejection of the idea by Archbishop Peter Smithspokesman for the English and Welsh Catholic Bishops.

As Archbishop Smith has pointed out is “Marriage does not belong to the State any more than it belongs to the Church. It is a fundamental human institution rooted in human nature itself.” and that is borne out by the legal history of marriage itself. The Marriage Act 1949which regulates the registration of Marriage in England and Wales does not contain any definition of what marriage is because that would have been regarded as an unnecessary statement of the blindingly obviousmarriage was not created by the 1949 Act or indeed any earlier statute because marriage has always existed. All that Parliament did in 1949 and earlier Acts was to set out the legal formalities for the registration of an already existing human institution; s1(1) of the Civil Partnership Act 2004 by contrast does define civil partnerships as “a relationship between two people of the same sex “ because the 2004 Act was creating an entirely new legal institution.

Proponents of Same Sex marriage, in particular the omnipresent Peter Tatchell repetitively compare the ban on same sex marriage to bans on inter-racial marriage in the American South or South African Apartheid but this is a simplistic and ignorant argument. In both Dixie and SA the idea was to prevent 'miscegenation' ie racial mixing and so the laws did not merely prevent inter-racial marriage but also made inter-racial sex and inter-racial cohabitationcriminal offences.

In view of the accusations of ignorant bigotry which are routinely thrown at Christian organisations in contrast to scientific rationalism it is perhaps worth remembering that much of the justification for banning inter-racial marriage was inspired by Eugenics 'scientists' inspired by Darwin. The 1924 Racial Integrity Actin Virginia for example was passed in tandem with an Act for “the compulsory sterilization of persons deemed to be "feebleminded," including the "insane, idiotic, imbecile, or epileptic.”

More fundamentally segregationist laws did not change the nature of marriage as involving a man and a woman what they did was to specify on racial grounds which woman a man could or could not marry and vice versa. This was the reason why American miscegenation laws were eventually ended by the US Supreme Court in the 1969 case ofLoving v Virginia. In Britain by contrast mixed-race marriage has never been illegal and indeed was never illegal throughout the British Empire. But regardless of whether mixed race marriage was legal or illegal the fundamental nature of marriage as involving a man and a woman was never in question and that is why the comparison of same-sex to mixed-race marriage is spurious.

So the Church therefore does have a legitimate right to object to suggestions that the fundamental human institution of marriage should be redefined by Parliament but it is also right to be concerned as to the implications for religious freedom of any redefinition of marriage or any attempt to allow civil partnerships to be celebrated in religious buildings and as part of any religious ceremony.

There are two proposals currently being considered by Government, firstly to allow same-sex civil partnerships to be celebrated in religious buildings in accordance with religious rites and secondly to redefine marriage to include same sex relationships. At present civil partnerships are, as their name implies, purely civil with no religious element involved though, as Archbishop Peter pointed out, there is nothing stopping any religious organisation giving a blessing or other religious ceremony separate from the formal legal “civil” ceremony. Quakers, Unitarians and Liberal Synagogues do this already but they have asked that they be allowed to hold the formal legal part of civil partnership at the same time and in the same premises as the religious ceremony. The Church of England and Catholic Church both oppose this suggestion

The problem with both these suggested changes is that in the present era of Human Rights and Anti-Discrimination laws once something is allowed it can become illegal to refuse to provide it

If Churches, Synagogues, Mosques etc are allowed to perform same sex marriages or civil partnerships they could easily find themselves being sued for “Discrimination” if they refuse to perform them. Any legislation would, no doubt, say that no church etc would be obliged to perform same-sex ceremonies but any such guarantees could be legally challenged and are not likely to be worth the paper they are written on.

In a recent case concerning Marriage Commissioners in Saskatchewan the Canadian Courts struck down provisions in their Marriage legislation that protected Marriage Commissioners who for reasons of conscience did not want to perform same-sex marriages.. In an Orwellian decision this recognition of freedom of conscience was declared to be contrary to the Canadian Charter of Rights and Fundamental Freedoms. The Charter is very similar to Britains Human Rights Act and therefore it is quite possible that the UK Courts would use the same logic as the Canadian Courts in order to strike down any conscience protections given to religious organisations that did not want to perform same-sex ceremonies. Arguments about religious freedom are not likely to carry much weight because in the2009 case of Ladellethe Court of Appeal declared that religious objections to same-sex relationships were not a “core part” of Christian belief and so were not protected under the Human Rights Act.

I began this article by referring to the 19th Century legal cases involving Mormon polygamy which were dealt with by the Courts on the basis of a robust understanding of marriage as the union of one man and one woman. In 2003 the Canadian Courts rejected this definition as discriminatory and in consequence same sex marriage was legalised in Canada. Today in British Columbia a fundamentalist Mormon Polygamist is defending himself on Bigamy charges by arguing that the Bigamy law is discriminatory. It is quite possible that he will win in which case Canada will have legalised, same sex marriage,polygamy, polyandry and polyamory. David Cameron has said that he regards marriage as fundamental to society but he and the government need to recognise once they open the Pandora’s box of trying to redefine marriage they will end up destroying it

Pope Benedict VI - Westminster Hall - 18 September 2010

Within this country too, there are many areas in which the Church and the public authorities can work together for the good of citizens, in harmony with Britain’s long-standing tradition. For such cooperation to be possible, religious bodies – including institutions linked to the Catholic Church – need to be free to act in accordance with their own principles and specific convictions based upon the faith and the official teaching of the Church. In this way, such basic rights as religious freedom, freedom of conscience and freedom of association are guaranteed.